In Comstockery: How Government Censorship Gave Birth to the Law of Sexual and Reproductive Freedom, and May Again Threaten It, Professors Reva Siegel and Mary Ziegler demonstrate how the anti-abortion movement’s effort to reinvent the Comstock Act (1873) as a national abortion ban lacks historical, legal, and democratic legitimacy.
The Act originated as an obscenity statute that criminalized “any article or thing designed or intended for the prevention of conception or procuring of abortion” or for “an indecent or immoral purpose.” Comstock revivalists, to borrow Siegel and Ziegler’s term, claim that the Act’s prohibition on mailing “any article or thing” bans the transit, in the U.S. mail, of all materials connected to abortion care—pills, equipment, or most anything else. Revivalists argue that courts should begin enforcing the Act to ban abortion nationwide, and some judges appear sympathetic to those arguments. In litigation described below, a federal district court and an appellate circuit court cited the Comstock Act in deciding to suspend FDA approval of medication abortion or to reimpose restrictions on it.
Siegel and Ziegler demonstrate why this interpretation of the Act is deeply flawed, combing through legislation, commentaries, letters, court cases, and other sources. In the late 1800s, Anthony Comstock and his allies began a campaign to write sweeping definitions of obscenity to safeguard “sexual purity” and to punish nonprocreative sex, inside and outside of marriage. Anti-vice activists viewed movements that sought to liberate women politically and sexually as threats to the “God-ordained” social order. As part of these efforts, they expanded the federal definition of obscenity to include writings and items intended for contraceptive or abortion use.
In 1878, the Supreme Court affirmed the Act’s constitutionality and held that the power to establish post-offices included the authority to regulate what could be mailed. In the same era, the standard for determining obscenity was based on what would affect the most impressionable citizens. (P. 34.) But the Act quickly became a tool for revenge between private citizens and the vehicle by which Anthony Comstock and others targeted supporters of free love and critics of obscenity laws.
Siegel and Ziegler detail how the Act’s punitive consequences and inconsistent enforcement chilled sexual expression and censored speech. Eventually, public opposition to the Act led to its disuse and appellate court decisions narrowed the application of the law. The trials and sentences of “Comstockery” opponents, such as Mary Ware Dennett and Margaret Sanger, received wide publicity and condemnation. Dennett’s conviction led to appellate decisions that narrowed the application of the Act: United States v. Dennett, 39 F.2d 564 (2d Cir. 1930), for example, refashioned the threshold for obscenity, focusing on the impact on society at large rather than on its most impressionable citizens. (P. 53.) Both court decisions as well as public resistance shifted the understanding of what was obscene and what was not, namely, legal healthcare that the Act never targeted. In interpreting the Act, courts protected physicians’ rights to “[promote] the well-being of their patients.” Even the Act’s most strident champions, including Anthony Comstock, had no intention of banning lawful abortions but targeted unlawful abortion, which was seen as a means of hiding illicit sexual conduct.
Although the Comstock Act has been mostly dormant for the last one-hundred years, the provisions on abortion have remained in the U.S. Code, though Congress repealed the language on contraception. Perhaps this is not surprising in an era when pre-viability abortion was a constitutional right. But consider that the rest of the Comstock Act, with its criminal federal punishments for mailing all “obscene, lewd, lascivious, indecent, filthy or vile article[s]” stands, too. Siegel and Ziegler write: “The obscenity law was enacted and then preserved on the books, entrenched against reform or repeal by forms of government action that today we would view as unquestionably unconstitutional and that branded certain forms of political speech, intimate behavior, and reproductive decision-making as unworthy long after enforcement of the obscenity statute had ceased.” (P. 10.) Contesting Comstock, over the life of the Act, helped pave the way for constitutional rights to contraception in Griswold and Eisenstadt and then to abortion in Roe. The Supreme Court developed the right to privacy from challenges to state obscenity laws (mini-Comstock Acts), which fundamentally intruded on the most intimate decisions of people’s lives.
Nevertheless, anti-abortion activists are counting on judges to enforce their interpretation of the Act. Alliance for Hippocratic Medicine alleged that the FDA exceeded its regulatory authority in approving the first drug in a medication abortion, mifepristone. The Supreme Court decided in June 2024 that Alliance had no standing to sue. But that was after a federal district judge in Amarillo and a panel of the Fifth Circuit Court of Appeals suspended, among other holdings, the FDA’s decision to lift a rule that would permit mailed medication abortion. As noted, both courts cited the Comstock Act as a potential bar to shipping pills, and other items, to patients.
While the Supreme Court made no mention of the Comstock Act in its Alliance opinion, the arguments accepted by the lower courts in the case are not going to disappear; indeed, they have a trajectory that predates Dobbs, the case that overturned Roe, and they are the basis of plans for an anti-abortion presidential administration
Bills calling for repeal of Comstock’s abortion language have been introduced in the Senate and the House but presently have slim chance of passing. Even if the bills fail, federal legislators should have to take a position on the Comstock Act. Representatives should have to publicly support a law that, enacted at a time when women could not vote, polices all sexuality through the criminal law. They should have to say out loud that Anthony Comstock’s vision of morality and punitive censorship should govern everyone’s lives.
Comstockery provides an invaluable resource for refuting revivalists’ arguments, shining a light on the Act’s history, and demonstrating how resistance to Comstock—and its definition of obscenity—yielded modern understandings of fundamental rights to expression and intimacy. Revivalists’ rewriting of this history is not a project of adhering faithfully to the text of an act, as Professors Siegel and Ziegler convincingly demonstrate. It is an end run around what revivalists cannot achieve through any democratic process—an absolute, criminal ban on abortion applied across all states.
